SACRAMENTO (AP) The ACLU, AARP and other groups urged a state appeals court on Tuesday to strike down a portion of Gov. Arnold Schwarzenegger's workers' compensation reforms, saying it leads to discrimination against older workers and women.

The groups are challenging the use of asymptomatic medical conditions that often accompany aging to reduce benefits paid to workers for job-related injuries.

The workers' compensation overhaul that Schwarzenegger and employers pushed through the Legislature in April 2004 allowed use of those factors in determining how much of a disability was due to a work-related injury and not some other reason, the groups say.

The case before the 3rd District Court of Appeal involves Lois Vaira, a 76-year-old Sacramento woman who suffered a broken back in 2003 while working as a receptionist for the California Travel and Tourism Commission.

Her employer's insurer, the State Compensation Insurance Fund, reduced her workers' compensation benefits by 40 percent, claiming her loss of bone density because of osteoporosis made her more susceptible to injury.

Vaira said she hadn't had problems with her back before she broke it while putting together material for representatives of the commission to use in promoting California tourism. Since then she's been able to continue working, but the injury makes it tougher for her to do such things as household chores.

"That is very difficult,'' she said following a hearing before a three-judge panel.

Steve Hopcraft, a spokesman for the California Applicants' Attorneys Association, a group of lawyers who represent injured workers, said insurers can legally take into consideration a prior injury or condition that clearly affects the subsequent work-related disability.

But, under the 2004 law, they are reducing workers' comp benefits because of ``risk factors,'' such as hypertension in black men or bone density loss in women, Hopcraft said.

"That is brand new territory that we believe is clearly discriminatory and illegal,'' he added.

Brad Seligman, a Berkeley attorney representing the ACLU, AARP and several other groups supporting Vaira, said that penalizing her because she has osteoporosis is ``very much like saying that a pension agency can discriminate against women because they live longer than men.''

"If this plaintiff had been younger, she would have gotten more benefits,'' he said. ``If she had been a man, she would have gotten more benefits.''

But Leah Davis, an attorney representing the city of Los Angeles, which intervened in the case on the side of the State Compensation Insurance Fund, said employers and their insurers should only have to pay to cover the portion of the disability caused by the injury.

Men and younger women can also get osteoporosis, she said, although it's more prevalent in older women.

"What the Legislature wanted to do is make sure employers are only charged for the percentage of disability their employment actually caused,'' she said. ``If Ms. Vaira's disability was caused 40 percent by osteopenia or osteoporosis, then the employer should not be charged for that.''

A spokeswoman for Schwarzenegger, Sabrina Lockhart, said it was premature to comment on the case because it was still pending. But she said Schwarzenegger was proud of the 2004 legislation, "which has helped our economy by reducing workers' compensation premiums while still protecting injured workers.''

The case is Vaira v. Workers' Compensation Appeals Board, C054948.

Source: CBS5.com

Gillian Parrillo
SacWomen